1. In Kansas, in order to prevail on a legal malpractice claim, a plaintiff is required to prove:
(1) the duty of the attorney to exercise ordinary skill and knowledge; (2) a breach of that
duty; (3) a causal connection between the breach of duty and the resulting injury; and (4)
actual loss or damage.

2. Generally, expert testimony is required to establish the appropriate standard of care and
causation because such matters are outside the knowledge of the average person. The
standard of care in a legal malpractice case is whether the attorney has exercised ordinary
skill and knowledge related to common professional practice.

3. The intricacies of the interplay between state and federal jurisdiction, the customs of a
particular court, and the federal law surrounding immigration and deportation are all
specialized areas of the law about which a lay juror would not know.

MARQUARDT, J.:Narvinder Singh appeals the district court's dismissal of
his breach of
contract claim and the grant of summary judgment to Donald C. Krueger. We affirm.

Singh, an over-the-road truck driver, pled guilty to one count of conspiracy to deliver
marijuana and one count of no tax stamp after more than 300 pounds of marijuana were found in
his semi-trailer truck. Singh claimed that he had no knowledge of the drugs and that they
belonged to the other driver.

After he was charged, Singh retained Krueger to represent him. Singh claims that he was
surprised when Krueger raised the issue of Singh pleading guilty because Singh knew that he was
not guilty. However, Krueger was concerned that the large amount of marijuana would trigger
federal prosecution and a possible prison sentence of 15 to 20 years. Singh estimated that Krueger
spent less than 1 hour with him prior to the disposition of his criminal case.

Even though Singh is not a United States citizen, he is here legally. He testified that he
expressed concerns to Krueger that a guilty plea would cause him to be deported. Krueger
allegedly told Singh that he did not need to worry about that because "that's not going to happen."
Singh ultimately pled guilty to the two charges and received a sentence of incarceration in March
2004.

In September 2004, Singh filed a motion to withdraw his guilty plea, arguing that Krueger
was ineffective because he spent less than 1 hour with Singh prior to his plea, never reviewed the
affidavit in support of the complaint with Singh, failed to provide adequate information about the
possibility of deportation, and was mistaken as to the likelihood of federal preemption.

The district court held a hearing to consider Singh's motion. The district court determined
that Singh received ineffective assistance of counsel and set aside his plea. In the journal entry, the
district court stated that were it not for Krueger's "unprofessional errors," there was a reasonable
probability that Singh would have proceeded to trial. Singh served his sentence while his motion
to withdraw his plea was pending. After he was allowed to withdraw his plea, Singh and the State
entered a diversion agreement.

A disciplinary investigation determined that none of Krueger's actions rose to the level of
professional misconduct.

In October 2005, Singh filed a petition claiming that Krueger breached his contract with
him when Krueger failed to perform certain duties while representing Singh. Singh also claimed
that Krueger committed legal malpractice.

Singh designated District Court Judge W. Lee Fowler as his expert witness. Judge Fowler
was the judge who ruled that Krueger provided Singh ineffective assistance of counsel and
granted Singh's motion to withdraw his plea. Krueger filed a motion to strike Judge Fowler as an
expert witness, claiming that it was improper for a trial judge to serve as an expert. Singh
eventually withdrew Judge Fowler's name from his witness list. Singh then stated that he had "no
intention of designating or calling any expert witness in the trial of this case."

Krueger filed a motion for summary judgment asserting that it would be impossible for
Singh to prove professional malpractice without the testimony of an expert witness. Krueger
asserted that Singh's claim required an expert to clarify for the jury what constituted ordinary skill
and knowledge. Krueger also filed a motion to dismiss Singh's breach of contract claim on
grounds that it was not a claim for which relief could be granted.

The district court held a hearing to consider Krueger's motions. After hearing arguments
from counsel, the district court ruled this was not the type of case that could be tried without an
expert because none of the issues raised by Singh were within "the common knowledge of a lay
person." Krueger's motions for summary judgment and dismissal were granted. Singh appeals.

On appeal, Singh contends that Kansas law does not require expert testimony in a legal
malpractice action if the failure to use due care is "so clear or obvious" that the finder of fact
could use common knowledge to find a deviation from the standard of care.

Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The trial court is required to resolve all facts and inferences which may reasonably be drawn from
the evidence in favor of the party against whom the ruling is sought. When opposing a motion for
summary judgment, an adverse party must come forward with evidence to establish a dispute as to
a material fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issues in the case. On appeal, we apply the same rules and where we
find reasonable minds could differ as to the conclusions drawn from the evidence, summary
judgment must be denied. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152
P.3d 53 (2007).

In Kansas, in order to prevail on a legal malpractice claim, a plaintiff is required to prove:
(1) the duty of the attorney to exercise ordinary skill and knowledge; (2) a breach of that duty; (3)
a causal connection between the breach of duty and the resulting injury; and (4) actual loss or
damage. Canaan v. Bartee, 276 Kan. 116, 120, 72 P.3d 911, cert. denied
540 U.S. 1090 (2003).
Generally, expert testimony is required to establish the appropriate standard of care and causation
because such matters are outside the knowledge of the average person. Perkins v. Susan B.
Allen
Memorial Hospital, 36 Kan. App. 2d 885, 888, 146 P.3d 1102 (2006).

Because of the lack of Kansas cases dealing with the necessity of an expert witness in a
legal malpractice action, cases from other jurisdictions are instructive. In Storm v.
Golden, 371
Pa. Super. 368, 538 A.2d 61 (1988), a client filed an action for legal malpractice, charging that
the attorney failed to properly monitor the movement of certain funds after the sale of residential
property. The court noted that the standard of care in a legal malpractice case is "whether the
attorney has exercised ordinary skill and knowledge related to common professional practice."
371 Pa. Super. at 375. It was the court's opinion that the "specific standard of care attributed to
legal practitioners necessitates an expert witness' explanation where a jury sits as the fact finder."
371 Pa. Super. at 375-76. In so finding, the court noted there was an enormous range of behavior
which might constitute legal malpractice. The court believed that some actions, such as neglecting
to file an action within the statute of limitations, would be a clear-cut breach, while the judgments
involved in trial tactics would "obviously" require guidance for the jury. It was the court's opinion
that most cases would fall somewhere in the middle, requiring expert testimony. 371 Pa. Super. at
376-77.

In Sommers v. McKinney, 287 N.J. Super. 1, 670 A.2d 99 (1996), a
malpractice action
regarding a fee dispute challenged counsel's handling of the plaintiff's case involving her tenured
status. The appellate court in Sommers stated: "Stripped to its essentials, plaintiff
asserts that she
accepted a settlement offer far inferior to one previously tendered because her attorney
inadequately prepared the case, failed to submit a legal argument to support her tenure claim and
misrepresented the state of the case to her." 287 N.J. Super. at 11. Given that fact, the court ruled
that Sommers need not present expert testimony because the jury was not being asked to evaluate
the attorney's judgment. Rather, Sommers' claim was basically that "no work was done to advance
her case" and her attorney misrepresented the facts to her in order to "induce her to settle the case
and collect his fee." 287 N.J. Super. at 11.

Initially, the Sommers case appears to be instructive because it involves an
attorney
improperly inducing a settlement without informing the client of all relevant facts. However, we
believe Sommers is distinguishable. The most obvious difference is that
Sommers involved a civil
case, where there was no potential for incarceration.

In the instant case, the time that Krueger spent with Singh was a minor issue. As the
district court noted, the brevity of Krueger's consultations with his client could be attributed to
Krueger's experience. Krueger's concern with federal preemption and Singh's possible deportation
were more critical.

At Krueger's disciplinary hearing, Judge Fowler acknowledged that federal involvement
was a threat since such a large amount of marijuana was found in Singh's truck. However, he did
not believe that should have been a factor in Singh's guilty plea, because the federal government
could have taken the case even after prosecution was initiated.

Judge Fowler also testified that Singh's concern about deportation was justified, noting
that even individuals placed on probation were likely to be deported. Judge Fowler recalled that
Krueger testified he told Singh if he had questions about deportation, he should consult with an
immigration attorney.

The two issues Singh raised involved matters outside the common knowledge of a lay
person. The intricacies of the interplay between state and federal jurisdiction, the customs of a
particular court, and the federal law surrounding immigration and deportation are all specialized
areas of the law about which a lay juror would not know. Accordingly, we do not believe there
was any way Singh could prove deviation from the standard of care without the use of expert
witness testimony. The district court properly granted Krueger's motion for summary judgment on
that issue.

After Singh agreed not to call Judge Fowler as his expert witness, he still indicated his
intent to call the judge as a fact witness. Krueger filed a motion in limine seeking to exclude that
testimony, arguing that it was improper to require the judge to publicly "take sides" in litigation.

After hearing arguments from counsel, the district court noted that the issue was most
likely moot. However, the court said that a judge who issued rulings in the same case at a prior
hearing will not be allowed to testify as a fact witness in a later hearing because it would require
that judge to justify his or her prior rulings.

On appeal, Singh acknowledges that this court need only reach the merits of the argument
if it reverses the district court's ruling on the motion for summary judgment. As this court believes
the ruling on the summary judgment motion was proper, we agree with the district court that the
matter is moot. See Rodarte v. Kansas Dept. of Transportation, 30 Kan. App. 2d
172, 183, 39
P.3d 675, rev. denied 274 Kan. 1113 (2002).